Young v. United States (214 F.2d 232, 1954)

FAHY, Circuit Judge.

This appeal is from a judgment of conviction of perjury charged to have been committed before a grand jury of the United States in the District of Columbia. The indictment is in five counts. The third and fourth were abandoned during the trial because of insufficient evidence to sustain them, The case was submitted to the jury on the remaining three counts. About five hours after the jury retired it announce who had a so been Present at fe conference with Dodd. Lawrenz *urther testlfied that he,had *ot sefn de' fendant since then until the first day of the tnal> but had a letter from him ask-mg what Peerless was going to do about the loan The letter was admitted m f ldff meantime it had been decided tbat becaase of a11 ,the rf.q1ulre; “ente and obligations Peerless did not tbink the_ loan worthwhile There was a so m evidence letter of March 31’ ?;949 f0. defendant which set forth additional_ information requested m connection with the RFC !°f ' ^ tated tb® letter and thought defendant re1ues e i .

Lawrenz further testified that Peerless paid defendant $500 in two checks, one for $300 and one for $200, but that he did not know exactly the purpose of the payments though he thought they were mainly for work defendant had done on renegotiation. Government counsel asked him if his memory would be refreshed about that. The witness replied that he tried to refresh himself

that day and had n®t been able to, “outside that I know he did quite a bit of work on renegotiation and never been paid for it”. Being then asked what matters other than renegotiation defendant handled for him Lawrenz said defendant sent some blueprints for work that Peerless might be interested in doing. Pressed to tell the jury for what purposes defendant was in the employ of Peerless, Lawrenz replied,

“It was no definite arrangement made for any employment for Mr. Young, only casual items that came up, such as renegotiation, which was started — that was tlm original start of the work — and trying to probably get us orders or work to figure on, and also this item at RFC.”

Asked if any of the $500 compensation was for work defendant did at the RFC the witness replied I do not know.” In response to a question of the court he said:

“I think we were asked to send him some expense money, if I remember right. What that was on I do not know, Judge.”

Over objection of defense counsel the court then permitted the Government to attempt to refresh the witness’ recollection by showing him a part of his grand jury testimony. On objection to impeachmg the witness m this manner, t e court said,

^ “This is not an attempt to impeach a witness, this is an attempt to refresh the witness’ recollection when the witness said he couldn t remember”

Having read-not aloud, but silently-the portion of his prior testimony designated by Government counsel the witness was asked if it refreshed his recollection as to the purpose for which defendant was paid. He replied that it refreshed his recollection that he did not know but thought the payments were for renegotiation and an expense account. The Government was then permitted over objection to ask the witness if he had not told the grand jury the payments were to cover both the RFC loan problem and the matter of getting Government contracts. The witness said he did, but “I think I also mention in there — * * * renegotiation.” He again stated that he did not know what the payments were for, except in connection with renegotiation work, and said he did not know how much work was done on the RFC loan application. On defense counsel’s objection that the following question was leading,

“Did you retain Mr. Young for the two purposes — that is, to get business for you here in Washington and to help you with your loan application ?”

court ruled that since it was obvious the witnegs wag reluctant) if not entirely hostile and antagonistic, Government C0lmgel would be permitted on direct examination to ask the type of question proper only to cross-examination, Whereupon Government counsel was permitted to read aloud, in the presence of the jury, from the minutes of the grand jury proceedings, pausing intermittently as indicated to ask the witness if he were not so questioned and if he did not so answer, as follows.

Q Question: “And at the same meeting you discugged with Herschel Young his possible assistance to you and your company in connection with the RFC joan problem that you had, did you not?”

Answer: „That .fl rigM.„

^ , Question: “So he was retained, was he for two purposes-is that

Answer: ' Yes, sir, that is correcp

Question: “Referring again to these two checks, what was the purpose of the two checks ?”

Answer: “As far as I know, it was expense on account.”

Question: “What does that mean ?”

Answer: “We sometimes give the men who work for us a check for expenses on account and we account for them'later on. But of course Mr. Young hasn’t accounted for anything.

Question: “By ‘on account’ you mean he was to account to you for services performed for you ?

Answer: “Yes, or moneys he had spent.

. Do remember giving that testimony?

A Yes, with one exception. I thought I had renegotiation in there.

Q I haven’t completed. I just want to know if you remember that testimony.

A That’s correct.

Q Did he ever render you an expense account ?

A No sir.

Q Were you asked these further questions, and did you give these further answers:

Question: “All moneys he had spent in connection with services he had performed?”

Answer: “Yes, sir, which would be deducted later on.”

Question: “Does that mean services performed in connection with. procuring Government contracts for your company and assisting you in the RFC loan problem ?”

Answer: “I would say yes. I would say that is correct.”

Question: “It would cover both situations?”

Answer: “I think it would.”

Question: “Is there any doubt?”

Answer: “No. Well, the only doubt is, I don’t fully recollect what it is. To the best of my knowledge, that is what it is.”

Question: “I mean, he is retained by you pursuant to arrangements you arrived at at a conference in Chicago to get Government contracts and to assist you in connection with the RFC loan application?”

Answer: “That is right.”

Question: “There is no doubt about that?”

Answer: “No; sir,, there is no doubt about that.”

Question: “And you are certain about that ?”

Answer: “That is right.”

“And in connection with the services he performed on both of these matters you paid him expenses on account. . Is there any doubt about that ?”

Answer: “I think that is correct.”

Question: “You have a note and an expression of doubt in your voice.”

Answer: “I don’t exactly remember, and I wouldn’t want to say anything that is not correct”

■ Question: “We have showed you one of two letters here in which, number one, you transmitted certain information,

Answer: “That’s right.”

Question: “To be used in connection with the RFC loan accord-m£ to the terms of the letter of March 31, 1949. On another oceasi°n y°u sent him a copy of the loan application,

Answer: “That is right.”

Did you give those answers to those questions ?

A Yes, sir.

q Now do you remember that you did send him the loan application?

MR. MARSHALL [Counsel for defendant] : I object to the question. The question has been. answered.

THE COURT: Objection overruled.

THE WITNESS: I still don’t remember.

Q Were you asked this question: “And you also sent him various documents so he was assisting you on the RFC loan or at least he told you he was assisting?”

Answer: “Yes, he did tell me.”

Is that correct ?

. ,, . A Correct, yes, sir.

. ^ wha1; were you Paym® him for?

Answer: “He said he needed expense money.”

Did you give that testimony?

A I believe I did.

Q Is that correct?

. . A Yes, sir.

Q “Expenses in connection with RFC problems and services he performed in that direction?”

Answer: “I don’t know, but I think it was both.”

„ Did you give that testimony?

A I gave that testimony, but the only thing that I questioned about my own testimony, that I did not mention renegotiation, because that was the biggest work that he done.

Q You remember giving that testimony?

A Yes sir

_ _ Lawrenz was then asked Was Mr. Young your representative here m Washington m connection with this RFC loan application?” to which he replied, “Yes, I believe he was.” The witness was then turned over to the defense, Thereupon the court called counsel to the bench and stated, out of the hearing of the jury:

“Lest there be some misunderstanding * * * you were reading those questions and answers to the witness and his stating that he did give that testimony, that does not make that testimony in this case * * *• It is only used to refresh kis recollection.

No such statement was made to the jury at any time. So far as the jury , ,, , . . , was concerned the grand jury minutes read in open court was apparently “testimony in this case.” The Government thus supplemented Lawrenz’s testimony given on the stand by showing that when he was before the grand jury he had gone further to support the Govemment’s position that defendant had represented Peerless in the loan matter be- „ fore the RFC.

It is seen from the foregoing that an attempt was first made to have th,e witness refresh his recollection by sllently readl”f a 1 hls grandjUry testimony. We think this was not error The diffieulty comes from what followed. The witness adhered to his tesmony. Unsatisfied, Government counsel was permitted to read aloud much more 0f Lawrenz’s grand jury testimony. This was not refreshing the witness’ recollection. It was placing before the trial jury testimony previously given before a grand jury when there had been no cross-examination and defendant was not confronted with the witnesses against him. See u.S.Const. Amend. VI.

Cross-examination to refresh a witness’ recollection on the basis of prior statements may be permitted, Hickory v. United States, 151 U.S. 303, 309, 14 S.Ct. 334, 38 L.Ed. 170; Di Carlo v. United States, 2 Cir., 6 F.2d

364, 367-368, certiorari denied, 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168 ; **3 Wigmore, Evidence § 764 (3d ed.); but the contents of the statements are not to be put in evidence before the jury. The Supreme Court said in U. S. v. SoeonyVacuum Oil Co., 310 U.S. 150, 234, 60 S.Ct. 811, 849, 84 L.Ed. 1129,

«* * * there would be error where under the pretext of refreshing a witness’ recollection, the prior testimony was introduced as evidence. Rosenthal v. United States, [8 Cir.] 248 F. 684, 686. * * * ”

In the Rosenthal ease cited by the Supreme Court the defendant was tried for false swearing before a referee in bank-ruptey. His conviction was reversed, one ground being the admission in evidence of previous testimony which the chief Government witness had given before the referee. While the court said this witness could be examined as hostile and as one whose testimony surprised the Government, nevertheless

“* * * it was improper to read to him all of his testimony before the referee, by way of cross-examination, and ask him, as every question and answer was read before the jury, ‘Did you not on the former occasion testify as follows?’ This was not for the purpose of refreshing his memory, but was in fact introducing his testimony, in an examination before the referee * * *. This was error. Commonwealth v. Jeffs, 132 Mass. 5; Chamberlayne on the Modern Law of Ev. § 3507.” [248 F. 686.]

See, also, Stearman v. Baltimore & O. Railroad Co., 6 App.D.C. 46, 51-52; United States v. Cross, 20 D.C. (9 Mackey) 365, 377; 3 Wigmore, Evi-denee §§ 763, 764, 904 at p. 400 (3d ed.). Lawrenz’s grand jury testimony could not be added to that given on the trial consistently with the necessity of trying the accused on the evidence, not before the grand jury which indicted him, but before the jury trying him on the indictment.

Wheeler v. United States, decided recently by this court, 93 U.S.App. D.C. 159, 211 F.2d 19, is not controlling here, There a prior statement of a Government witness was read aloud, not to refresh the witness’ memory, but to impeach her. To impeach a witness by means .of a prior contradictory statement it is commonly necessary to read the statement aloud. Often it is only in this way that the jury can be made fully aware of the inconsistency between the Prior statement and the present testimony But is generally not necessfr7 to r^d th